Orissa High Court
Multu @ Tarachand Mohanta (Dead) vs State Of Orissa on 19 February, 2026
THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 100 of 1994
(In the matter of an application under Section 374 of the Criminal
Procedure Code, 1973)
1. Multu @ Tarachand Mohanta (Dead)
2. Gurucharan Mohanta
3. Sambhu @ Sadhu Charan Mohanta
4. Hulku @ Madhucharan Mohanta ....... Appellants
-Versus-
State of Orissa ....... Respondent
For the Appellants : Mr. H.K. Mohanta, Advocate
For the Respondent : Mr. Sobhan Panigrahi, ASC
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 10.02.2026 : Date of Judgment: 19.02.2026
S.S. Mishra, J. Four convicts have jointly preferred the present
appeal assailing the judgment and order dated 22.01.1994 passed by
the learned Sessions Judge, Mayurbhanj, Baripada in S.T. No. 12 of
1992. By the impugned judgment, the learned Trial Court found the
appellants guilty of offences punishable under Sections 148, 323 readwith Section 149 and 304 Part-II read with Section 149 of the Indian
Penal Code. Consequently, each of the appellants was sentenced to
undergo rigorous imprisonment for a period of three months for the
offence under Section 323 read with Section 149 IPC and further
sentenced to undergo rigorous imprisonment for five years for the
offence under Section 304 Part-II read with Section 149 IPC.
However, no separate sentence was imposed U/s.148 of IPC.
2. While the appeal was pending, this Court was apprised that
appellant no.1- Multu @ Tarachand Mohanta has expired. Therefore,
vide order dated 31.07.2025, the appeal against the said deceased
appellant stood abated, in the absence of any motion on behalf of the
legal heirs or next friend of the deceased appellant U/s.394 of Cr.P.C.
Therefore, the present appeal is confined to appellant Nos.2 to 4.
3. Heard Mr. Niranjan Lenka, learned Counsel for the appellants
and Mr. Sobhan Panigrahi, learned Additional Standing Counsel for
the State.
Page 2 of 16
4. The prosecution case, in substance, is that on 07.06.1991 the
accused persons, along with one Kalicharan Mohanta, formed an
unlawful assembly and proceeded to the disputed land situated at
village Jagannathpur with the common object of forcibly taking
possession of the said land and of causing the death of Chaitan
Mohanta and his family members in the event of any resistance.
It is alleged that at the relevant time Chaitan Mohanta, his sons,
nephew and uncle were ploughing and sowing at the disputed land,
when the accused persons arrived there and launched an attack.
Accused Hulku @ Madhucharan Mohanta allegedly dealt a lathi blow
on the head of Krutibas Mohanta, who was sitting on the land, as a
result of which Krutibas fell down unconscious. When Hemanta
Mohanta rushed to the rescue of Krutibas, accused Sambhu @
Sadhucharan Mohanta is stated to have dealt a lathi blow on his head,
causing a bleeding injury.
It is further alleged that accused Gurucharan Mohanta raised a
tangi with the intention of killing Hemanta Mohanta; however,
Basanta intervened, caught hold of the tangi and, after a scuffle,
Page 3 of 16
snatched it away from him. Similarly, Chaitan Mohanta is said to
have snatched away the bow and arrows from Kalicharan Mohanta.
After the incident, the accused persons allegedly left the spot.
Thereafter, Chaitan Mohanta, Basanta Mohanta and Srinibas Mohanta
took the injured Krutibas and Hemanta to a local doctor, who referred
them to the District Headquarters Hospital, Baripada. Krutibas
Mohanta succumbed to his injuries at the District Headquarters
Hospital, Baripada.
Chaitan Mohanta thereafter lodged a report before the police
authorities. Upon completion of investigation, the police submitted
charge-sheet against the accused persons. The case of Kalicharan
Mohanta was split up as he was a juvenile at the relevant time. The
present impugned judgment concerns the remaining four accused
persons, namely Tarachand Mohanta, Gurucharan Mohanta,
Sadhucharan Mohanta and Madhucharan Mohanta.
5. The plea of the accused persons is one of complete denial.
According to them, they are the lawful owners and possessors of the
disputed land and were cultivating the same on the date of occurrence.
Page 4 of 16
It is their specific case that the prosecution party, being the
aggressors, came to the spot and assaulted them, resulting in injuries
to several of the accused persons.
6. In order to substantiate its case, the prosecution examined ten
witnesses, while the defence examined one witness.
P.W.1 is the informant, Chaitan Mohanta. P.W.6 is his son,
Hemanta Mohanta, and P.W.7 is his nephew, Basanta Mohanta.
P.W.4 was the doctor, who examined Hemanta Mohanta on police
requisition, and P.W.5 was the doctor, who conducted the post-
mortem examination over the dead body of Krutibas Mohanta. P.W.2
was a witness to the seizure of the stick produced by accused Hulku
@ Madhucharan Mohanta. P.W.3 was a witness to the seizure of the
tangi and the iron portions of arrows from Chaitan Mohanta. P.W.9
was the Amin attached to the Tahasil Office, Baripada, who
demarcated the disputed land. P.Ws.8 and 10 were the Investigating
Officers of the case.
On behalf of the defence, one Mr. K.K. Bhanj Deo, learned
Advocate for the accused persons, was examined as D.W.1.
Page 5 of 16
7. The learned Trial Court on analyzing the evidence on record,
has returned its finding and relevant will be to reproduce paras 11,12
and 13 of the impugned Judgement wherein the learned Trial Court
has reasoned the conviction of the accused persons:-
“11. The parties are fighting for the possession of a
piece of land at village Jagannathpur. According to the
prosecution party, this land belongs to them and they are
in possession of the same, but accused Tarachand tried
to grab a portion of this land and put a ridge for which
there was a Panchayati, but the accused persons did not
attend that Panchayati and because of this land, the
accused persons attacked them on the date of
occurrence. The defence case is that the accused persons
are in possession of the disputed land and were
cultivating the same on the date of occurrence, when the
prosecution party came and attacked them with the
intention to drive them from the disputed land. Thus, in
order to find out whether P.Ws. 1, 6 and 7 are speaking
the truth or whether the accused persons have a plea of
bonafide right, the evidence regarding the possession of
the disputed land should be examined. In this connection,
the prosecution party produced the record of right of the
disputed land. The document shows that the disputed
land has been recorded in the name of informant Chaitan
Mohanta by the settlement authorities. The amin P.W.9
says that on the direction of the Tahasildar, Baripda he
demarcated the disputed land in consultation with the
Khatian, village map etc, and found that the disputed
land stands on plot no. 25 of khata no. 12 of village
Jagannathpur and it stands recorded in the name of
Chaitan Mohanta. He says that a piece of Govt. landPage 6 of 16
adjoins this disputed land and this Govt land bears plot
no. 11 of khata no. 68. The report end the trace map
prepared by P.W.9 have been marked as Ext.8 and 8/2
respectively. The records of right of both khata 12 and
68 are in the name of Chaitan Mohanta.
P.W.1 says that accused Tarachand wanted to
create disturbance in the disputed land and put a ridge
on the disputed land for which there was a Panchayati,
but accused Tarachand did not attend that panchayati,
P.W.s. 6 and 7 also give similar statements. The I. O,
P.W.10 says that on his request the amin went and
demarcated the disputed land and it was found that
Chaitan Mohanta is the owner and possessor of that
land. As against this evidence, the accused persons have
examined their Advocate, who says that once on the
request of accused Tarachand be drafted a petition to
SDO, Baripada for police help as there was
apprehension of trouble on the lands of Khata no. 69.
The said petition Ext.A has been filed. The Advocate
(D.W.1) admits in cross-examination that the land in
question is a Govt. land and has not been settled with the
accused persons and the accused persons also did not
produce any document along with the petition Ext. A. He
also admits that the accused persons did not file any
prayer before the settlement Authorities for recording
this land in their favour. Thus, virtually there is no
evidence from the side of the defence to show that the
accused persons had any right or possession over the
disputed land. Rather, the evidence on record shows that
Chaitan Mohanta was the owner and possessor of the
disputed land.
Therefore, I am inclined to hold that the accused persons
are the aggressors and they inflicted the injuries to
Krutibas and Hemanta and that Krutibas died because of
the head injury.
12. The next point which requires examination is whether
all the accused persons would be liable or whether only
accused Hulku alias Madhucharan Mohanta andPage 7 of 16
Sambhu alias Sadhucharan Mohanta, would be
responsible. It is stated by P.Ws. 1,6 and 7 that the
accused persons came in a body to the land armed with
deadly weapons and one of them namely accused Hulku
alias Madhucharan Mohanta suddenly dealt a lathi blow
on Krutibas and then accused Sambhu alias Sadhuctaran
Mohanta dealt a lathi blow on Hemanta Mohanta. The
very fact that the accused persons came together to the
land armed with weapons shows that they had formed an
unlawful assembly with an object to cause violence and
when two members of the said assembly inflicted injuries
on Krutibas and Hemanta, their action will amount to an
action of the assembly and each member of the unlawful
assembly will be bound by the act.
Therefore, all the accused persons would be
equally liable for the act of accused Hulku alias
Madhucharan Mohanta and Sambhu alias Sadhucharan
Mohanta. Krutibas died as a result of the attack. But it is
seen that Hulku alias Madhucharan dealt only one blow
with a stick on the head. Similar blow was given on
Hemanta, who survived. The main object of the assembly
was therefore to use force and take over possession of
the land, but not to cause death to the members of the
prosecution party. So, the provisions of Section 302/149
of the Indian Penal Code is not attracted, For the death
of Krutibas Mohanta, the accused persons would be
liable Under Section 304 Part II/ 149 of the Indian Penal
Code regarding the injury on the head of Hemanta, the
doctor is of the opinion that the injury was simple in
nature. So the accused persons are liable Under Section
323/149 of the Indian Penal Code.
13. In the result, I, therefore, hold the accused persons
guilty under Sections 148/323/149 and 304 Part II /149
of the Indian Penal Code and convict them thereunder.”
8. Mr. Lenka, learned Counsel for the appellants, has submitted
that the case prima facie arose out of a land dispute and that there was
Page 8 of 16
previous tussle and enmity between the parties regarding the said
piece of land. On the fateful day, both the parties were present there
to plough their respective pieces of land, subsequent to which the
fight took place.
He submitted that it is noteworthy to take into consideration
that the accused persons lacked any mens rea for committing the
crime. Neither was the weapons attributed to them specialized
weapons for killing individuals, but rather common farm equipment
which farmers ordinarily carry to the field. Though blows by such
implements may prove fatal, the accused appellants used the same
only in exercise of their right of private defence against the
individuals concerned.
Additionally, it is contended that there are no independent
witnesses on record to prove that the accused appellants were the
aggressors or that they were present at the incident spot with the
intention to assault the opposite party. The witnesses examined are
only interested witnesses.
Page 9 of 16
It is further submitted that accused-appellant Nos. 2 and 3 have
been implicated as part of an unlawful assembly under Sections 148
and 149 of the IPC and have also been implicated along with accused-
appellant No. 4 under Section 304 Part-II IPC, though no specific
overt act has been attributed to them by the witnesses. According to
the learned Counsel, the assembly was not unlawful but a natural one.
In this light, he has prayed for acquittal of the accused
appellants and submitted that the act was done in exercise of their
right of private defence as contemplated under Sections 96 to 106 of
the IPC.
9. Per contra, Mr. Sobhan Panigrahi, learned Additional Standing
Counsel for the State, has supported the impugned judgment in toto
and submitted that the prosecution has been able to establish the case
beyond all reasonable doubt. He contended that the evidence of the
injured witnesses, namely P.Ws.1, 6 and 7 are consistent, cogent and
trustworthy, and stands duly corroborated by the medical evidence of
P.Ws.4 and 5. It is further submitted that the appellants had formed an
unlawful assembly with the common object of forcibly taking
Page 10 of 16
possession of the disputed land and, in prosecution of the said
common object, assaulted the deceased and other injured witnesses.
The fatal head injury sustained by the deceased clearly attracts the
ingredients of Section 304 Part-II read with Section 149 of the IPC.
Accordingly, it is prayed that the conviction and sentence recorded by
the learned Trial Court warrant no interference.
10. At this juncture, it would be apposite to advert to the scope and
ambit of Sections 148 and 149 of the Indian Penal Code. For ready
reference, the provisions are extracted herein below:
“S. 148. Rioting, armed with deadly weapon.–Whoever
is guilty of rioting, being armed with a deadly weapon or
with anything which, used as a weapon of offence, is
likely to cause death, shall be punished with
imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
S. 149. Every member of unlawful assembly guilty of
offence committed in prosecution of common object.–If
an offence is committed by any member of an unlawful
assembly in prosecution of the common object of that
assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that
offence, is a member of the same assembly, is guilty of
that offence.”
Page 11 of 16
Upon a careful scrutiny of the evidence on record and the surrounding
circumstances, this Court proceeds to examine whether the essential
ingredients of the aforesaid provisions stand satisfied.
To attract Section 149 of the IPC, the prosecution must establish:
i. the existence of an unlawful assembly as defined under Section
141 IPC;
ii. that the accused were members of such assembly; and
iii. that the offence was committed in prosecution of the common
object of that assembly, or such as the members knew to be
likely to be committed. The sine qua non for its application is
the existence of a common object, formed prior to or at the spur
of the moment, but clearly established through cogent evidence.
In this context, it is necessary to observe that the unlawful assembly is
always poised with intent to commit a crime and is therefore
premediated. In absence of any evidence regarding premediated intent
to commit a crime mere assembly by accused persons which is
otherwise natural one can’t be inferred to be an unlawful assembly.
Page 12 of 16
Hence, invocation of section 149 of the code is forbidden on facts of
the instant case.
11. In the present case, the evidence discloses that both parties had
assembled at the disputed land for the purpose of cultivation. The
presence of the accused persons at the spot, therefore, cannot ipso
facto be construed as participation in an unlawful assembly. The
materials on record do not establish any prior meeting of minds or
premeditated design to commit an offence. The occurrence appears to
have arisen out of a sudden altercation in the backdrop of a land
dispute. In such circumstances, the necessary ingredient of a common
object to commit a specific offence is conspicuously absent.
Consequently, the invocation of Section 149 IPC is unsustainable.
12. Likewise, for the application of Section 148 IPC, it must be
shown that the accused were guilty of rioting while being armed with
a deadly weapon or with an instrument which, used as a weapon of
offence, is likely to cause death. In the case at hand, the weapons
attributed to the accused are lathis, a tangi and bow and arrows,
which, in the factual context, have been shown to be common
Page 13 of 16
agricultural implements ordinarily carried by farmers to the field.
There is no material to suggest that these were specially procured or
carried with the deliberate intention of committing a homicidal
assault. Though such implements may, in a given circumstance, cause
serious or even fatal injuries, their mere possession in an agricultural
setting does not automatically bring the case within the ambit of
Section 148 IPC. In absence of clear evidence establishing rioting
with deadly weapons in the statutory sense, the conviction under
Section 148 IPC cannot be sustained.
13. In view of the above discussion, this Court is of the considered
opinion that accused-appellant Nos. 2 and 3 cannot be held liable
under Section 304 Part-II read with Section 149 IPC, nor under
Section 148 IPC. However, the evidence on record does establish
their individual participation in causing simple injuries on the injured
victim, which is also established by medical evidence. Accordingly,
their conviction under Section 323 IPC is upheld, but not with the aid
of Section 149 IPC.
Page 14 of 16
14. So far as accused-appellant No. 4 is concerned, the evidence
clearly attributes to him the overt act resulting in the fatal injury to the
deceased. His act squarely attracts the ingredients of Section 304 Part-
II IPC. However, for the reasons already discussed, he is entitled to
acquittal of the charges under Sections 148/149/323 IPC.
15. At this stage, it is brought to the notice of this Court that
accused-appellant Nos. 2 and 3 have already undergone custody for a
period of one year and three months. It is further submitted that
accused-appellant No. 2 is mentally retarded. It is also not in dispute
that accused-appellant No. 4 has already undergone the entire period
of sentence awarded to him by the learned Trial Court.
It is pertinent to note that accused-appellant Nos. 2 and 3 now
stand convicted only under Section 323 IPC, for which the maximum
prescribed punishment is imprisonment for one year. Having already
undergone imprisonment for more than one year, they have
effectively undergone the substantive sentence imposable under the
said provision.
Page 15 of 16
So far as accused-appellant No. 4 is concerned, he has already
undergone the sentence as awarded by the Court below. Considering
that more than three decades have elapsed since the date of
occurrence, no further interference with regard to sentence is called
for at this belated stage.
16. Hence, while the conviction is modified to the extent indicated
hereinabove, no further order on sentence is required, as nothing
survives for consideration in that regard.
17. Accordingly, the Criminal Appeal is partly allowed and is
disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack.
Dated the 19th February, 2025/ Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB MOHAPATRA
Designation: Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 19-Feb-2026 16:21:54 Page 16 of 16
